Marijuana Legality: Not a Done Deal, Despite Public Approval

Cannabis has made major strides in terms of public opinion in recent years. Today, a majority of Americans say marijuana should be legal. In November, California voters agreed it should be legal for recreational use. More than half of all states now have some form of legal access to medical marijuana. It would seem, then, the next logical step would be for the federal government to step back from the stringent law that’s currently on the books – the one that classifies marijuana as a Schedule I narcotic with no redeemable value – and create a policy that more fits the modern legal landscape.

Not so fast. As the Associated Press recently reported, two of President-Elect Donald Trump’s top picks for prime cabinet positions – Sen. Jeff Sessions of Alabama and Rep. Tom Price of Georgia – could mean a new crackdown on marijuana-tolerant states, including California.

Just this past April, Sessions was quoted during a U.S. Senate hearing as saying that those who smoke marijuana are “not good people,” and likening those who believe marijuana should be legal are not grown-ups. He added that legalization of marijuana posed a “very real danger” to America.

Price has consistently voted down marijuana legalization measures that crossed his desk, including those that would have granted U.S. Veterans access to medical marijuana and laws that would have respected states’ autonomy on the issue.

Keep in mind, although President Barack Obama’s White House has been lax in its enforcement of existing federal marijuana laws, with his attorney general explicitly instructing U.S. attorneys not to prosecute individuals and businesses abiding by state-approved marijuana laws. But the fact remains: The Controlled Substance Act still bans marijuana even for medicinal purposes. Cannabis is considered a Schedule I narcotic, and that does not appear likely to change with the next administration. The question will be how ardently Trump’s administration presses for a crackdown based on existing federal laws.

So what exactly might that mean? The government has several options it could utilize if it wanted to enforce the Controlled Substance Act. That includes:

Take states to court. The government could sue the 28 states – or state agents – that allow marijuana for medical or recreational purposes.

Raid marijuana businesses. The DEA has the power to shut down anyone who sells or grows marijuana. However, there hasn’t been any federal attempt to do that in the last couple of years. Those who have lived in California over the last two decades will recall, however, a time when such practice was commonplace. The DEA has said repeatedly it doesn’t have the resources to go after ordinary pot users, but it could certainly take action against marijuana suppliers – especially the larger ones.

Create financial hurdles. Taxes are one of the biggest complaints from those in the marijuana industry. Some businesses pay 80 percent more than other types of small businesses when it comes to taxes and fees. They also have very minimal access to banking because banks are wary of federal law that could be used to accuse them of money laundering (accepting profits from the sale of illegal drugs).

Tighter regulations. This is a likely approach if officials want to fight marijuana legalization, but want to be cautious of defying public opinion. Using miles of bureaucratic red tape could result in making access extremely difficult.

Over these next four years, marijuana dispensaries, collectives, businesses, doctors and patients may want to consult with an experienced marijuana lawyer.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.